Mitchell Group USA, LLC et al v. Udeh et al

Filing 137

MEMORANDUM DECISION AND ORDER: Motion for reconsideration is denied. Ordered by Judge Ann M Donnelly on 2/17/2016. (Greene, Donna)

FILED
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF NEW YORK

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--------------------------------------------------------------- )(

BROOKLYN OFFICE

FEB 1 7 2016

MITCHELL GROUP USA LLC; and GAPARDIS
HEALTH AND BEAUTY, INC.,

MEMORANDUM DECISION AND
ORDER

Plaintiffs,
-against-

14-CV-5745 (AMD)(JO)
NKEM UDEH, individually and d/b/a, "BEAUTY
RESOURCE"; TIMITE & SON BEAUTY
SUPPLIES, INC.; WORLD BEAUTY
DISTRIBUTOR, INC.; AFRICAN &
CARIBBEAN MARKET, INC.; and JOHN DOES
1-10; and UNKNOWN ENTITIES 1-10,

Defendants.

.

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ANN M. DONNELLY, District Judge.
The defendants Timite & Son Beauty Supply Inc. and World Beauty Distributor, Inc., both
owned by Sahendou Timite (the "Timite defendants"), have moved for reconsideration of an order
by the Honorable Judge Dora Irizarry, by which she ordered sanctions for civil contempt and struck
the defendants' answer. 1 For the reasons that follow, the motion is denied.

BACKGROUND
In the underlying action, the plaintiffs accuse the defendants of unfair competition, and
trademark counterfeiting and infringement. 2 Over the course of the litigation, despite escalating

1 Judge

Irizarry announced her ruling from the bench on August 20, 2015 and issued a memorandum and order on
November 5, 2015; the certificate of default was issued on November 24, 2015.
2
The plaintiffs and the other defendants have agreed to settlement.

1

sanctions, the defendants repeatedly failed to comply with multiple discovery orders. As a result,
on August 12, 2015, Magistrate Judge James Orenstein recommended that the defendants be held
in civil contempt for failing to: ( 1) appear in court; (2) comply with outstanding discovery orders;
and (3) pay the outstanding fees and fines. (Dkt. No. 100.) Judge Orenstein also recommended
that the defendants' answer be stricken, that the plaintiffs be allowed to move for default judgment,
and that the defendants be precluded from offering any evidence in future proceedings that should
have been produced in discovery. Id.
On August 20, 2015, following a full hearing on the merits, Judge Irizarry adopted Judge
Orenstein's recommendations. (See Minute Entry for Show Cause Hearing, Aug. 20, 2015.) The
defendants moved to vacate the contempt order on September 16, 2015. (Dkt. No. 104.) Judge
Irizarry denied the motion without prejudice, because it did not comply with the Federal Rules of
Civil Procedure or with Judge Irizarry's individual rules. See September 17, 2015 Order. The
case was reassigned to me on November 8, 2015.

The defendants filed this motion on

December 17, 2015. (Dkt. No. 132.)3
DISCUSSION
A court should not grant a motion for reconsideration pursuant to Federal Rule of Civil
Procedure 54(b) "where the moving party seeks solely to relitigate an issue already decided."

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). In order to succeed on a motion
for reconsideration, the moving party must demonstrate "an intervening change of controlling law,
the availability of new evidence, or the need to correct a clear error or prevent a manifest injustice."

3

The defendants filed a notice of appeal to the Second Circuit, but withdrew it on February 12, 2016.

2

Virgin At/. Airways, Ltd v. Nat'! Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.1992) (internal
citation omitted).
The defendants do not cite any new evidence nor any new legal authority in support of their
motion. Instead, they argue simply that the monetary fines were sufficiently coercive to induce
compliance with discovery orders, and that the Court's imposition of non-monetary sanctions was
unnecessarily punitive.

(See Dkt. No. 132-11.)

As the record makes clear, however, the

defendants have failed to establish that there was either a clear error or that there was manifest
injustice in Judge Irizarry's decision.
On the contrary, both Judge Orenstein and Judge Irizarry were faced with a party that
utterly refused to participate in the discovery process. In an effort to compel compliance, Judge
Orenstein took various steps, increasing in severity, all to no avail. First, he ordered the defendants
to pay the plaintiffs' fees and costs. When that step was unsuccessful, he imposed sanctions of
$250 per day, a measure that also failed to compel compliance.

Finally, Judge Orenstein

recommended that Judge Irizarry strike the defendants' answer and preclude them from offering
any evidence that they should have produced during the discovery process, and that she permit the
plaintiffs to seek a default judgment. Following a full hearing on the merits, Judge Irizarry adopted
Judge Orenstein's recommendation. Given the defendants' recalcitrance, this remedy was both
appropriate and necessary.
A court is empowered to strike the pleadings of a party and to enter default judgment
against the party when the party fails to obey a discovery order. See Fed. R. Civ. P. 37(b)(2)(A).
Under the circumstances in this case, the remedy imposed ~as amply warranted by the defendants'
behavior. Therefore, it was not a clear error or a manifest injustice to impose these sanctions.

3

Because the defendants have failed to make the requisite showing, the motion for reconsideration
is denied.

SO ORDERED.

s/Ann M. Donnelly
M. Donnelly
United States District Judge

Dated: Brooklyn, New York
February 17,2016